BILL NUMBER: SB 951	CHAPTERED  10/10/99

	CHAPTER   673
	FILED WITH SECRETARY OF STATE   OCTOBER 10, 1999
	APPROVED BY GOVERNOR   OCTOBER 6, 1999
	PASSED THE SENATE   SEPTEMBER 7, 1999
	PASSED THE ASSEMBLY   SEPTEMBER 1, 1999
	AMENDED IN ASSEMBLY   AUGUST 30, 1999
	AMENDED IN ASSEMBLY   JULY 15, 1999
	AMENDED IN ASSEMBLY   MAY 26, 1999

INTRODUCED BY   Senators Hayden and Johnston

                        FEBRUARY 25, 1999

   An act to amend Sections 8547, 8547.2, 8547.3, 8547.8, 8547.10,
and 8547.12 of, and to repeal and add Section 8547.1 of, the
Government Code, relating to state employees.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 951, Hayden.  State employees:  disclosure of improper
activities.
   (1) Under the Reporting of Improper Governmental Activities Act,
the State Auditor is authorized to conduct an investigative audit
upon receiving confirmation that an employee or state agency has
engaged in an improper governmental activity.  A state employee,
including a University of California employee, is prohibited from
using his or her official authority or influence to intimidate,
threaten, coerce, or command a person in order to interfere with the
right of that person to make a disclosure under the act.
   This bill would rename the act as the "California Whistleblower
Protection Act."  The bill would also revise the protection afforded
to persons who make a disclosure to include persons who make a
protected disclosure, as defined, or refuse to obey an illegal order
and would provide that a protected disclosure includes disclosure to
anyone of information that may evidence an improper governmental
activity or evidence any condition that may significantly threaten
the health or safety of employees or the public if the disclosure was
made for the purpose of remedying the condition.  The bill would
also provide that nothing in the bill is intended to supersede or
limit the right to make a privileged publication in an official
proceeding with regard to information provided under the act.  The
bill would make conforming changes with respect to the California
State University and the University of California.  Violation of the
prohibition against interfering with the right of an employee to make
a disclosure is a crime.  Thus, this bill would impose a
state-mandated local program by expanding the scope of an existing
crime.
  (2) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state.  Statutory provisions establish procedures for making that
reimbursement.
   This bill would provide that no reimbursement is required by this
act for a specified reason.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  Section 8547 of the Government Code is amended to read:

   8547.  This article shall be known and may be cited as the
"California Whistleblower Protection Act."
  SEC. 2.  Section 8547.1 of the Government Code is repealed.
  SEC. 3.  Section 8547.1 is added to the Government Code, to read:
   8547.1.  The Legislature finds and declares that state employees
should be free to report waste, fraud, abuse of authority, violation
of law, or threat to public health without fear of retribution.  The
Legislature further finds and declares that public servants best
serve the citizenry when they can be candid and honest without
reservation in conducting the people's business.
  SEC. 4.  Section 8547.2 of the Government Code is amended to read:

   8547.2.  For the purposes of this article:
   (a) "Employee" means any individual appointed by the Governor or
employed or holding office in a state agency as defined by Section
11000, including, for purposes of Sections 8547.3 to 8547.7,
inclusive, any employee of the California State University.
   (b) "Improper governmental activity" means any activity by a state
agency or by an employee that is undertaken in the performance of
the employee's official duties, whether or not that action is within
the scope of his or her employment, and that (1) is in violation of
any state or federal law or regulation, including, but not limited
to, corruption, malfeasance, bribery, theft of government property,
fraudulent claims, fraud, coercion, conversion, malicious
prosecution, misuse of government property, or willful omission to
perform duty, or (2) is economically wasteful, or involves gross
misconduct, incompetency, or inefficiency.  For purposes of Sections
8547.4, 8547.5, 8547.10, and 8547.11, "improper governmental activity"
includes any activity by the University of California or by an
employee, including an officer or faculty member, who otherwise meets
the criteria of this subdivision.
   (c) "Person" means any individual, corporation, trust,
association, any state or local government, or any agency or
instrumentality of any of the foregoing.
   (d) "Protected disclosure" means any good faith communication that
discloses or demonstrates an intention to disclose information that
may evidence (1) an improper governmental activity or (2) any
condition that may significantly threaten the health or safety of
employees or the public if the disclosure or intention to disclose
was made for the purpose of remedying that condition.
   (e) "Illegal order" means any directive to violate or assist in
violating a federal, state, or local law, rule, or regulation or any
order to work or cause others to work in conditions outside of their
line of duty that would unreasonably threaten the health or safety of
employees or the public.
   (f) "State agency" is defined by Section 11000.  "State agency"
includes the University of California  for purposes of Sections
8547.5 to 8547.7, inclusive, and the California State University for
purposes of Sections 8547.3 to 8547.7, inclusive.
  SEC. 5.  Section 8547.3 of the Government Code is amended to read:

   8547.3.  (a) An employee may not directly or indirectly use or
attempt to use the official authority or influence of the employee
for the purpose of intimidating, threatening, coercing, commanding,
or attempting to intimidate, threaten, coerce, or command any person
for the purpose of interfering with the rights conferred pursuant to
this article.
   (b) For the purpose of subdivision (a), "use of official authority
or influence" includes promising to confer, or conferring, any
benefit; effecting, or threatening to effect, any reprisal; or
taking, or directing others to take, or recommending, processing, or
approving, any personnel action, including, but not limited to,
appointment, promotion, transfer, assignment, performance evaluation,
suspension, or other disciplinary action.
   (c) Any employee who violates subdivision (a) may be liable in an
action for civil damages brought against the employee by the offended
party.
   (d) Nothing in this section shall be construed to authorize an
individual to disclose information otherwise prohibited by or under
law.
  SEC. 6.  Section 8547.8 of the Government Code is amended to read:

   8547.8.  (a) A state employee or applicant for state employment
who files a written complaint with his or her supervisor, manager, or
the appointing power alleging actual or attempted acts of reprisal,
retaliation, threats, coercion, or similar improper acts prohibited
by Section 8547.3, may also file a copy of the written complaint with
the State Personnel Board, together with a sworn statement that the
contents of the written complaint are true, or are believed by the
affiant to be true, under penalty of perjury.  The complaint filed
with the board, shall be filed within 12 months of the most recent
act of reprisal complained about.
   (b) Any person who intentionally engages in acts of reprisal,
retaliation, threats, coercion, or similar acts against a state
employee or applicant for state employment for having made a
protected disclosure, is subject to a fine not to exceed ten thousand
dollars ($10,000) and imprisonment in the county jail for a period
not to exceed one year.  Any state civil service employee who
intentionally engages in that conduct shall be disciplined by adverse
action as provided by Section 19572.  If no adverse action is
instituted by the appointing power, the State Personnel Board shall
invoke adverse action as provided in Section 19583.5.
   (c) In addition to all other penalties provided by law, any person
who intentionally engages in acts of reprisal, retaliation, threats,
coercion, or similar acts against a state employee or applicant for
state employment for having made a protected disclosure shall be
liable in an action for damages brought against him or her by the
injured party.  Punitive damages may be awarded by the court where
the acts of the offending party are proven to be malicious.  Where
liability has been established, the injured party shall also be
entitled to reasonable attorney's fees as provided by law.  However,
any action for damages shall not be available to the injured party
unless the injured party has first filed a complaint with the State
Personnel Board pursuant to subdivision (a), and the board has failed
to reach a decision regarding any hearing conducted pursuant to
Section 19683.
   (d) This section is not intended to prevent an appointing power,
manager, or supervisor from taking, directing others to take,
recommending, or approving any personnel action or from taking or
failing to take a personnel action with respect to any state employee
or applicant for state employment if the appointing power, manager,
or supervisor reasonably believes any action or inaction is justified
on the basis of evidence separate and apart from the fact that the
person has made a protected disclosure as defined in subdivision (b)
of Section 8547.2.
   (e) In any civil action or administrative proceeding, once it has
been demonstrated by a preponderance of evidence that an activity
protected by this article was a contributing factor in the alleged
retaliation against a former, current, or prospective employee, the
burden of proof shall be on the supervisor, manager, or appointing
power to demonstrate by clear and convincing evidence that the
alleged action would have occurred for legitimate, independent
reasons even if the employee had not engaged in protected disclosures
or refused an illegal order.  If the supervisor, manager, or
appointing power fails to meet this burden of proof in an adverse
action against the employee in any administrative review, challenge,
or adjudication in which retaliation has been demonstrated to be a
contributing factor, the employee shall have a complete affirmative
defense in the adverse action.
   (f) Nothing in this article shall be deemed to diminish the
rights, privileges, or remedies of any employee under any other
federal or state law or under any employment contract or collective
bargaining agreement.
  SEC. 7.  Section 8547.10 of the Government Code is amended to read:

   8547.10.  (a) A University of California employee, including an
officer or faculty member, or applicant for employment may file a
written complaint with his or her supervisor or manager, or with any
other university officer designated for that purpose by the regents,
alleging actual or attempted acts of reprisal, retaliation, threats,
coercion, or similar improper acts for having made a protected
disclosure, together with a sworn statement that the contents of the
written complaint are true, or are believed by the affiant to be
true, under penalty of perjury.  The complaint shall be filed within
12 months of the most recent act of reprisal complained about.
   (b) Any person who intentionally engages in acts of reprisal,
retaliation, threats, coercion, or similar acts against a University
of California employee, including an officer or faculty member, or
applicant for employment for having made a protected disclosure, is
subject to a fine not to exceed ten thousand dollars ($10,000) and
imprisonment in the county jail for up to a period of one year.  Any
university employee, including an officer or faculty member, who
intentionally engages in that conduct shall also be subject to
discipline by the university.
   (c) In addition to all other penalties provided by law, any person
who intentionally engages in acts of reprisal, retaliation, threats,
coercion, or similar acts against a university employee, including
an officer or faculty member, or applicant for employment for having
made a protected disclosure shall be liable in an action for damages
brought against him or her by the injured party.  Punitive damages
may be awarded by the court where the acts of the offending party are
proven to be malicious.  Where liability has been established, the
injured party shall also be entitled to reasonable attorney's fees as
provided by law.  However, any action for damages shall not be
available to the injured party unless the injured party has first
filed a complaint with the university officer identified pursuant to
subdivision (a), and the university has failed to reach a decision
regarding that complaint within the time limits established for that
purpose by the regents.
   (d) This section is not intended to prevent a manager or
supervisor from taking, directing others to take, recommending, or
approving any personnel action or from taking or failing to take a
personnel action with respect to any university employee, including
an officer or faculty member, or applicant for employment if the
manager or supervisor reasonably believes any action or inaction is
justified on the basis of evidence separate and apart from the fact
that the person has made a protected disclosure.
   (e) In any civil action or administrative proceeding, once it has
been demonstrated by a preponderance of the evidence that an activity
protected by this article was a contributing factor in the alleged
retaliation against a former, current, or prospective employee, the
burden of proof shall be on the supervisor, manager, or appointing
power to demonstrate by clear and convincing evidence that the
alleged action would have occurred for legitimate, independent
reasons even if the employee had not engaged in protected disclosures
or refused an illegal order.  If the supervisor, manager, or
appointing power fails to meet this burden of proof in an adverse
action against the employee in any administrative review, challenge,
or adjudication in which retaliation has been demonstrated to be a
contributing factor, the employee shall have a complete affirmative
defense in the adverse action.
   (f) Nothing in this article shall be deemed to diminish the
rights, privileges, or remedies of any employee under any other
federal or state law or under any employment contract or collective
bargaining agreement.
  SEC. 8.  Section 8547.12 of the Government Code is amended to read:

   8547.12.  (a) A California State University employee, including an
officer or faculty member, or applicant for employment may file a
written complaint with his or her supervisor or manager, or with any
other university officer designated for that purpose by the trustees,
alleging actual or attempted acts of reprisal, retaliation, threats,
coercion, or similar improper acts for having made a protected
disclosure, together with a sworn statement that the contents of the
written complaint are true, or are believed by the affiant to be
true, under penalty of perjury.  The complaint shall be filed within
12 months of the most recent act of reprisal complained about.
   (b) Any person who intentionally engages in acts of reprisal,
retaliation, threats, coercion, or similar acts against a California
State University employee, including an officer or faculty member, or
applicant for employment for having made a protected disclosure, is
subject to a fine not to exceed ten thousand dollars ($10,000) and
imprisonment in the county jail for up to a period of one year.  Any
university employee, including an officer or faculty member, who
intentionally engages in that conduct shall also be subject to
discipline by the university.
   (c) In addition to all other penalties provided by law, any person
who intentionally engages in acts of reprisal, retaliation, threats,
coercion, or similar acts against a university employee, including
an officer or faculty member, or applicant for employment for having
made a protected disclosure shall be liable in an action for damages
brought against him or her by the injured party.  Punitive damages
may be awarded by the court where the acts of the offending party are
proven to be malicious.  Where liability has been established, the
injured party shall also be entitled to reasonable attorney's fees as
provided by law.  However, any action for damages shall not be
available to the injured party unless the injured party has first
filed a complaint with the university officer identified pursuant to
subdivision (a), and the university has failed to reach a decision
regarding that complaint within the time limits established for that
purpose by the trustees.  Nothing in this section is intended to
prohibit the injured party from seeking a remedy if the university
has not satisfactorily addressed the complaint within 18 months.
   (d) This section is not intended to prevent a manager or
supervisor from taking, directing others to take, recommending, or
approving any personnel action, or from taking or failing to take a
personnel action with respect to any university employee, including
an officer or faculty member, or applicant for employment if the
manager or supervisor reasonably believes any action or inaction is
justified on the basis of evidence separate and apart from the fact
that the person has made a protected disclosure.
   (e) In any civil action or administrative proceeding, once it has
been demonstrated by a preponderance of the evidence that an activity
protected by this article was a contributing factor in the alleged
retaliation against a former, current, or prospective employee, the
burden of proof shall be on the supervisor, manager, or appointing
power to demonstrate by clear and convincing evidence that the
alleged action would have occurred for legitimate, independent
reasons even if the employee had not engaged in protected disclosures
or refused an illegal order.  If the supervisor, manager, or
appointing power fails to meet this burden of proof in an adverse
action against the employee in any administrative review, challenge,
or adjudication in which retaliation has been demonstrated to be a
contributing factor, the employee shall have a complete affirmative
defense in the adverse action.
   (f) Nothing in this article shall be deemed to diminish the
rights, privileges, or remedies of any employee under any other
federal or state law or under any employment contract or collective
bargaining agreement.
   (g) If the provisions of this section are in conflict with the
provisions of a memorandum of understanding reached pursuant to
Chapter 12 (commencing with Section 3560) of Division 4 of Title 1,
the memorandum of understanding shall be controlling without further
legislative action.
  SEC. 9.  Nothing in this act is intended to supersede or limit the
application of the privilege of subdivision (b) of Section 47 of the
Civil Code to informants and proceedings conducted pursuant to
Article 3 (commencing with Section 8547) of Chapter 6.5 of Division 1
of Title 2 of the Government Code, as confirmed in Braun v. Bureau
of State Audits (1998) 67 Cal.App.4th 1382.
  SEC. 10.  No reimbursement is required by this act pursuant to
Section 6 of Article XIIIB of the California Constitution because the
only costs that may be incurred by a local agency or school district
will be incurred because this act creates a new crime or infraction,
eliminates a crime or infraction, or changes the penalty for a crime
or infraction, within the meaning of Section 17556 of the Government
Code, or changes the definition of a crime within the meaning of
Section 6 of Article XIIIB of the California Constitution.
